CONSTITUTIONAL DEVELOPMENT IN KENYA IN 1999

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1 CONSTITUTIONAL DEVELOPMENT IN KENYA IN 1999 By Kivutha Kibwana INTRODUCTION This report traces and evaluates constitutional development in Kenya in Section One describes the meaning and nature of constitutional development. Section Two presents a historical perspective of constitutional development from 1960 to1999. The report then proceeds to describe constitutional development in 1999 under several sub-sections, that is, establishing the process for constitutional change; constitutional amendment in 1999; implementation of the constitution; and citizen activism and constitutional development. Section Four discusses the National Convention Executive Council s (NCEC s) attempt to break the constitutional impasse. The concluding section tackles emerging issues of constitutional development in The report reveals that the pre consensus reached by citizens in entrenching a people driven process of constitutional review had begun to be reversed in President Daniel Arap Moi, the ruling Kenya African National Union (KANU) and the co-operating opposition National Development Party (NDP) mounted a vigorous campaign to the effect that constitutional reform was the preserve and responsibility of parliament, not civil society. By December 1999, Moi had secured a political strategy for the amendment of the 1998 review law through a parliamentary select committee headed by NDP leader Raila Odinga. In response, civil society and the reform inclined opposition established the Ufungamano Initiative led by religious leaders with the mandate that it makes and enforces a people s constitution and finds a suitable way of enforcing it. Hence two parallel systems of constitutional review were born in 1999, thereby rendering trouble free constitution making an impossibility. SECTION ONE: THE MEANING AND NATURE OF CONSTITUTIONAL EVELOPMENT. The present initiative by KITUO CHA KATIBA: EAST AFRICAN CENTRE FOR CONSTITUTIONAL DEVELOPMENT to annually review the state of constitutional development

2 and thus constitutionalism is invaluable for several reasons. Such assessment is likely to reveal existing shortfalls for corrective action. Also corresponding strengths can be highlighted and build upon. The evaluation enables a country to monitor its record of constitutionalism and democratisation thereby creating an opportunity to incrementally strengthen its culture of constitutionalism. If and when many countries annually review their record of constitutionalism, it will become possible to compare and borrow best practices in constitutionalism continent-wide. KITUO s new effort is thus likely to strengthen constitutionalism in East Africa and even Africa. Constitutional development can be examined from several perspectives. Whenever a country makes a new constitution, one can analyse all the processes and activities which feed into and shape such constitution making. Secondly constitutional development concerns the way in which the citizenry relate to a new or existing constitution. Those activities accompanying the changing or amendment of a constitution similarly provide another aspect of constitutional development. The other key component concerns the implementation of the existing constitution by the executive, judiciary and also the legislature. A close examination of constitutional development will crucially then shows the extent to which a country s citizens and officials collectively make and embrace constitutional norms. The tendency in Africa however has been to depart from the official elite made constitution. I have elsewhere summarised this trend as follows: It is clear to me that in any African country at any given time more than one constitution may be in place. The written or textual constitution is also the aspirational constitution. Opposition leaders or elements and the citizens may clamour for the primacy of such constitution. The political incumbency often claims to follow such a constitution - sometimes even to the letter - but that is usually in rhetoric, or at best the leadership selectively abides by certain parts of the written constitution. Where it is obvious that the leadership feels frustrated by certain sections of the constitution and there is pressure or expectation for these to be followed, then amendments are engineered. These formal amendments are undertaken so that the leadership can continue to argue that it is still faithful to the original constitution or a citizens derived constitution.[i] This survey on Kenya s constitutional development also examines the extent to which the legal constitution was adhered to in Finally in our analysis of constitutional development, we must

3 also examine whether non-state actors conduct their own affairs through their own, as well as official constitutional norms. This is an important area of enquiry because non-state actors that demand the state to act constitutionally and democratically must practice constitutionalism. SECTION TWO: CONSTITUTIONAL DEVELOPMENT IN HISTORICAL PERSPECTIVE Since this Kenya s 1999 Annual Report on constitutional development is the first in KITUO s series, a summary of constitutional and significant political developments in the period will form a sound basis for the report. Such outline including highlights of 1999 developments is presented below:- 1960, 1962 and 1963: Lancaster House Constitutional Conferences were held in London and Nairobi (1963) to negotiate independence constitution. 1963: May elections were held on the principle of one person, one vote. The Kenya National African Union (KANU) won. On June 1 the country attained internal self-government. On December 12, full independence was granted : Secession threat by Kenyan Somalis led to protracted civil war and the promulgation of emergency law until The North Eastern Province has been run by the government analogously to an occupied territory during war time. 1964: Kenya became a republic and Jomo Kenyatta her president after unification of the hitherto dual executive. KANU and the opposition party Kenya African Democratic Union (KADU) merged to pave way for de facto one partism (twice), 1965, 1966 (four times), 1967, 1968 (twice), 1969, 1974 (twice), 1975 (twice), 1977, 1979, 1982, 1984, 1986, 1987, 1988, 1990, 1991 (twice), 1992, 1997, 1999: Various constitutional amendments were effected. The first set ( ) dismantled multipartism. The second set (1990 to the present) have begun to hesitantly recreate a multiparty democracy.

4 1965, 1969, 1975, 1990,1996, Assassinations of Pio Gama Pinto, Tom J. Mboya, J.M. Kariuki, Robert Ouko and Karimi Nduthu respectively 1966: An opposition party the Kenya Peoples Union (KPU) was formed. 1969: KPU was banned and its leaders detained. 1969, 1974, 1979, 1983, General elections were held 1988, 1992, 1997, 1978 Jomo Kenyatta died, his vice president Daniel Arap Moi succeeded him as president. 1982: A constitutional amendment made Kenya a dejure one party state to forestall the registration of an opposition political party by Jaramogi Oginga Odinga and George Moseti Anyona. In August, there was an attempted military coup d etat which was ruthlessly crushed : Protracted crackdown of MWAKENYA and other political dissidents. These years represent the hay days of the Moi dictatorship. 1990: Saba Saba demonstrations whose central demand was resumption of multipartism were violently broken by the police. Scores of demonstrators were killed. KANU established a Review Committee to collect views from Kenyans on how KANU should be reformed : Politically instigated ethnic clashes left about 1000 Kenyans dead and many thousands more especially from the major ethnic Kikuyu community rendered internal refugees. 1991: Donors withdrew budgetary support aid so as to pressurise for return to multipartism. 1991: Multipartism restored through the repeal of section 2A of the constitution. 1995: On New Year s ever, Moi promised constitutional review would start.

5 1996: The National Convention Planning Committee (NCPC), the executive arm of pro-democracy forces who had come together to agitate for constitutional change was formed. 1997: The National Convention Assembly and its executive arm the National Convention Executive Council (NCEC) were formed. Between May and July, widespread mass action forced the government to concede to minimum constitutional and legal changes necessary to facilitate freer and fairer elections. The Constitution of Kenya Review Commission Act, 1997 was passed to provide a framework for constitutional change : Second generation of politically instigated ethnic clashes. 1998: Negotiations between civil society and the political class for the review of the Constitution of Kenya Review Commission Act, 1997 led to an extensive amendment of the Act via the Constitution of Kenya Review Commission (Amendment) Act 1998 (the amended law was now called Constitution of Kenya Review Act, 1997) and the creation of a substantially people driven process of constitution-making was created. 1999: KANU frustrated the establishment of organs for the review of the constitution and therefore the implementation of the review law; KANU and NDP successfully sponsored a parliamentary motion to facilitate the amendment of the Constitution of Kenya Review Act, 1997; NCEC launched Katiba Mpya- Maisha Mapya: A Vision for National Renewal, a document that detailed how Kenya could overcome the existing political stalemate; The Ufungamano Initiative, a citizen s lobby on constitutional change led by the religious sector was established with the mandate that it should facilitate the making of a constitution for Kenyans by themselves.

6 SECTION THREE: CONSTITUTIONAL DEVELOPMENTS IN Establishing the process of constitutional change. President Daniel Arap Moi assented to the Constitution of Kenya Review Commission (Amendment) Act, 1998 on 24th December The law s commencement date was 30th December Section 4 (1) of the Constitution of Kenya Review Act, provided: Within fifteen days of the commencement of this Act, the bodies referred to in sub-section (2) of section 3 shall submit to the Attorney General the names of the persons nominated in accordance with that section for appointment as commissioners. Section 3 (2) established the constitutional commission to consist of: The chairperson Thirteen persons nominated by the political parties as represented in the Interparties Parliamentary Committee of whom at least two shall be women One person nominated by the Kenya Espicopal conference of Bishops One person nominated by the Muslim Consultative Council and the Supreme Council of Kenya Muslims One person nominated by the Protestant churches in Kenya as represented by: i. National Council of Churches of Kenya ii. The Seventh Day Adventist Church iii. The Church of God iv. The Kenya Indigenous Christian Churches v. The Evangelical Fellowship of Kenya Five persons nominated by women s organisations through the Kenya Women s Political Caucus of whom at least one shall be a woman with disability. Four persons nominated by the civil society through the National Council of Nongovernmental Organisations, particular regard being had to the youth, the disabled, professional associations and the pastoralists in Kenya, of whom at least one shall be a person with disability and one a woman. The Attorney General or his representative who shall be an ex officio commissioner.

7 During the third Safari Park forum held to negotiate the amendment of the initial Constitution of Kenya Review Commission Act, 1997, KANU argued it was not necessary to specify the number of commissioners each parliamentary political party was entitled to nominate since the Inter Parties Parliamentary Committee would settle the issue. However informally agreement was reached on how the 13 seats reserved for parliamentary political parties would be shared. When the parliamentary parties eventually sat to dispose of the issue, no agreement was reached. In January, they twice failed to agree and similarly on February 4, 5 and 194. On February 19, KANU even sent 22 representatives (instead of 2) to the meeting, which was coordinating the establishment of the commission. Further meetings convened on March 22 and April 14 did not yield consensus on the selection of political parties nominee commissioners. The Protestant churches as well as the Kenya Women Political Caucus each ended supplying two sets of commissioners to the Attorney General. The selection of nominee commissioners by the National Council of Non Governmental Organisations was also marred by rigging of the elections when one faction of the electorate colluded with the Ministry of Culture and Social Services to register civil society groups which instantly became eligible voters. Due to the manipulations described above, the commission was never established and thus the constitutional review process could not start. Although a suit by the bona fide officials of the Women Political Caucus resolved the nomination issue for the Caucus,5 other stage-managed stalemates in the nomination process obstructed the establishment of the commission. Although the Constitution of Kenya Review Commission (Amendment) Act, 1998 was largely viewed by the stakeholders who negotiated it as satisfying the criteria of a peoples driven process of constitutional change,6 the National Convention Executive Council identified fifty flaws, which rendered the law difficult to implement.7 Three broad positions were developed over time in relation to whether the review law as amended by the 1998 Act should be amended further or operationalized as it was. These were:

8 According to KANU and NDP, the Act had to be amended to give parliament supreme control over the constitutional review process The non KANU - NDP political parties and civil society groups which had the right to nominate commissioners wanted the Act to be immediately operationalized NCEC called for further amendments to the Act to secure a people s constitution making process further although it recognised that the said Act represented the then highest level of national consensus on how the constitution should be changed. After effectively frustrating the establishment of the commission, Moi and KANU resumed the boisterous campaign that the proper forum for constitutional reform was parliament because, according to Moi, the process under the review law would cost colossal sums of money and Wanjiku - a euphemism for the ordinary Kenyan did not know what the constitution entailed and could not therefore participate in its making. A KANU parliamentary caucus meeting in October resolved to seek parliamentary changes to the 1998 review law to exclude civil society involvement in the organs of constitutional review. In November and December, an intensified campaign was undertaken to set in motion the machinery for amending the Constitution of Kenya Review Commission (Amendment) Act, A parliamentary select committee was established ostensibly with the mandate to break the stalemate on constitutional review. This committee was dominated by both KANU and NDP.8 Fifty-four non - NDP opposition MPs led by the Democratic Party (DP) had previously boycotted the proceedings of parliament during the deliberations on the establishment of the parliamentary select committee. A spirited attempt by Moi to lobby opposition leaders to embrace the route of parliamentary review of the constitution failed before the fait accompli passage of the December 15, National Assembly s resolution establishing a select committee. The Resolution stated: That while noting that the Constitution of Kenya Review Commission (Amendment) Act 1998 received Presidential Assent on December 24, 1998, with a commencement date of December 30, 1998; cognisant of the fact that the implementation of the Act has been hampered by the disagreement over the nomination of commissioners among some stakeholders, and concerned that the review process is now behind schedule as a result of the impasse; 9and in order to facilitate consensus building necessary to resolve the stalemate amongst the bodies specified in the First schedule to the Act, the formation of a Review commission and the co-ordination of the constitutional review process, this House resolves to establish a select committee comprising 27

9 members to review the Constitution of Kenya Review Act according to the wishes of Kenyans and facilitate the formation of the Review Commission. The non -KANU - NDP MPs, with the exception of three MPs, boycotted the proceedings of the select committee. On December 17, the chairman of the select committee Raila Odinga announced that his committee would meet Kenyans and foreign experts to solicit their opinions on the Review. From the above account it is clear that: By the end of 1999 a peoples driven process of constitution making, which had been agreed on - though imperfect - was about to be dismantled by parliament. However there was no consensus among the MPs on the move. KANU had appeared to support the Constitution of Kenya Review Commission (Amendment) Act, 1998 since in 1998 it lacked the political strength to oppose or scuttle it. However, KANU s negotiations at Safari Park were not bona fide. Indeed even at the Safari Park forum, KANU s position was that only parliament should review the constitution. Through the Attorney General s office and some members of the Safari Park Drafting Committee, KANU ensured that the 1998 law was written sloppily rendering it difficult to implement. The manner in which the commissioners were allocated especially among civil society both secular and religious - created divisions, in that progressive segments of civil society were excluded from the composition of the commission. Opportunistic elements that had played a minor or no role at all in the struggle for the new constitution ended up in the abortive commission. Acrimony was thereby sowed in the civil society. The elite has not developed a consensus on the need for and scope of constitutional change. KANU supports minor changes while other forces support more basic or fundamental changes aimed at undoing dictatorship or cosmetic multipartism. If then 1997 was a crucial year in the agitation for constitutional change, 1998 the year of negotiations, 1999 was the year of stalemate; a low point in Kenya s journey towards democratic renewal.

10 3.2 Constitutional Amendment in 1999 Towards the end of 1999, curiously a bi-partisan movement to change one aspect of the constitution developed. Initially KANU appeared to resist it only to embrace it in no time. Assisted by a nongovernmental organisation called Centre for Governance and Development (CGD), an opposition MP Peter Oloo Aringo introduced a private member s bill whose objective was to amend the constitution so as to enhance the independence of parliament. The bill sought the establishment of an independent parliamentary service commission.10 Hitherto parliamentary staff came under the ambit of Public Service Commission. Moi suggested to KANU that his party should defeat Aringo s bill and then table a similar bill six months later. Twenty-five KANU MPs who apparently disagreed with their chairman and president vowed to support Aringo s bill. Subsequently however the government took over the bill which was unanimously passed on November 11. Although the above bill appeared to be an opposition initiative, KANU did not ultimately object to it for various reasons. These are: Passage of the constitutional amendment by parliament strengthened KANU s argument that only parliament should review the constitution; KANU wanted parliament to feel it was independent and should assert itself over civil society although KANU-NDP still controlled parliament; A parliamentary service commission alone could not guarantee the independence of parliament because other factors that promoted its subservience to the executive such as constituency gerrymandering, independence of the electoral commission etc. were not dealt with. NCEC and the civil society generally criticised the lone amendment on the basis that it was undertaken without consultation with the people of Kenya and gave the impression that parliament was only concerned with those amendments which favoured it as an institution. 3.3 Implementation of the Constitution There are several key questions regarding the constitution s implementation, which have not been hitherto resolved by legislative intervention or judicial interpretation. They were not also resolved in These are:

11 According to section 9, if a president holds office for less than 5 years, has he/she served a term? The section provides: 9(1) The president shall hold office for a term of five years beginning from the date on which he is sworn in as president. (2) No person shall be elected to hold office as president for more than two terms. According to section 16(1) offices of Minister of the Government of Kenya shall be established by parliament or, subject to any provisions made by parliament, by the president. Since parliament, has never passed such a law, what is the status of the current ministries? Section 16 (2) provides the president shall, subject to the provisions of any written law, appoint ministers from among the members of the National Assembly. Such enabling law is yet to be passed. Presumably the law in question could provide that the president can appoint ministers outside the national assembly as well and that the National Assembly could vet the president s ministerial nominations. The 1997 amendment of this section, which added the language subject to the provisions of any written law, is yet to be exploited. Section 33 (3) provides that nominated MPs shall be nominated by the parliamentary parties according to the proportion of every parliamentary party in the National Assembly, taking into account the principle of gender equality. The judiciary is yet to interpret what taking into account the principle of gender equality means. Section 47 provides for the alteration of the constitution. The courts have not yet interpreted whether this includes de novo constitution making. According to section 61(2) puisine judges shall be appointed by the president acting in accordance with the advice of the Judicial Service Commission. The judiciary has not yet been moved to determine whether persons appointed as judges without the advice of the Judicial Service Commission are legally appointed.

12 Section 84 (5) provides: Parliament (a) may confer upon the High Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling that court, more effectively to exercise the jurisdiction conferred upon it by this section; and (b) Shall make provision i. for rendering of financial assistance to any indigent citizen of Kenya where his right under this chapter (chapter V) has been infringed or with a view to enabling him engage the services of an advocate to prosecute his claim; and ii. for ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal aid is real. Parliament is yet to pass a law to implement this constitutional provision. Under section 84 (6) the Chief Justice is empowered to make rules with respect to the practice and procedure of the high court in relation to the vindication of human rights. The Chief Justice has never made such rules. According to sections 115, 117 and 118, trust land cannot be alienated to those it is not held in trust for unless it is set apart first. Since independence substantial land has been alienated in contravention of the constitution. No court has conclusively interpreted these provisions. Some areas in which the executive acted in support of the constitution in 1999 are the following: In January the minister in charge of agriculture sacked the entire National Irrigation Board after farmers riots which had challenged its management In March, the Executive pressurised the board of the National Bank of Kenya to take responsibility for massive bad loans and thereby resign. The government had 22.5% shares in the bank and a public parastatal the National Social Security Fund (NSSF) had 37.5% shares in the bank. The government seemed interested in sending a signal that it was protecting public property. In April the President finally appointed a Vice President after 14 months of the position being vacant.

13 In July the President appointed the so-called Dream Team consisting of technocrats sourced from the private sector and multilateral organisations. Their mandate was to clean the civil service and revive the economy. In July the President placed a ban on the allocation of land until further notice. This was as a consequence of public protest against illegal allocation of such land and public forests. In September the President reduced the number of ministries from 27 to 15 but retained the 27 ministers, implying that most of the ministries are led by several ministers. Several cases of constitutional significance were lodged in court. In February the Law Society of Kenya sued the Chief Justice requiring him to establish a tribunal to investigate bribery allegations against high court Judge Richard Kuloba under section 62 of the constitution. 11 In February, the president was sued a second time for not appointing a vice president.12 The suit by the Supreme Council of Kenya Muslims enjoined the Attorney General, whom it accused of failing to advise the President appropriately on the matter. In September, Nairobi Town Clerk Zipporah Wandera was jailed for contempt of court. She had defied a court order of June 25th stopping the Nairobi City Council from preventing Qurdoba Enterprises from distributing petrol in Nairobi. Her activity was viewed, inter alia, as violating constitutionally protected property rights of Qurdoba Enterprises.13 In September a new Chief Justice who had previously been a pro-government prosecutor famous for prosecuting human rights and pro-democracy activists was appointed. The Law Society of Kenya unsuccessfully opposed his elevation. 14The February cases were never concluded in the plaintiffs favour. It is clear from this segment that both the executive and the judiciary have not actively safeguarded the constitution and promoted democratic changes. 3.4 Citizen Activism and Constitutional Development In the first part of the year, many citizens and their groups were involved in activism, which impacted on constitutional development:

14 In January, two women were arrested in a demonstration protesting the allocation of the Nakuru Municipality Retail Market to a private developer. Traders demolished a fast food facility erected in the same market. In January, rice farmers in Kirinyaga and Mwea protested against the manner in which the National Irrigation Board handled their affairs. One farmer was shot dead. In February students of University of Nairobi rioted over the illegal allocation by government of Karura forest to private individuals. In March riots broke out in Nyeri and Karatina, Central Province in which citizens were protesting the poor state of roads. Also in Kisumu Jua Kali traders protested the demolition of their kiosks by the municipal council. In March, inter - denominational prayers were held in Nairobi to protest allocation of Karura forest to private developers. On March 11, NCEC relaunched a reform movement to agitate for constitutional reform. In April mourners protesting the killing of the chairman of the Kamae Squatters Resettlement scheme carried his casket to the Chief s camp, blaming his death on the government. In June, a Budget Day demonstration for an all inclusive process of constitutional change was violently broken outside parliament. PCEA clergyman Rev. Timothy Njoya and NCEC co-convenor Davinder Lamba were injured. In June, a strike against the Transport Licensing Board rules was staged by the Matatu transport sector. The said rules sought to phase out tout operators and to replace them with city council workers. A rally held to commemorate Saba Saba Day in July called on Kenyans to force Moi out of office.

15 In July Nairobi City Council workers held a strike to demand salary arrears. On September 21, Catholic bishops demanded a peoples process of constitutional change. The 15 bishops and 2 priests met the president at State House. On September 26, the Catholic church launched civic education materials to prepare Kenyans for constitutional review. Archbishop Ndingi Mwanaa Nzeki warned that dictators will not be allowed to derail the process. On September 30, 23 Catholic bishops warned the country s leadership that civil strife was imminent if the several crises facing the country were not addressed. In their pastoral letter they identified the key problems as corruption, hunger, plunder of public resources, HIV/AIDS, insecurity and collapsed infrastructure. On October 17, Catholic bishops began another round of protests over the review process with an open mass at the Holy Family Minor Basilica, Nairobi. On October 21, religious leaders united in condemning KANU s proposal that civil society be excluded from the review process. They demanded that the Attorney General reconvenes the Safari Park Forum so that it could oversee the nomination of commissioners; that the 1998 review law should not be taken back to parliament; and that all the stakeholders named in the Act must participate in constitution -making. On December 3, religious leaders announced their intention to call a meeting of all stakeholders at Ufungamano House. On December 15, the Ufungamano Initiative was established with the mandate that it should write a peoples constitution for Kenya. In 1999 Kenyans were engaged in various protests and other activities which had constitutional implications. Also the religious fraternity accepted for the first time to lead the constitutional reform process. However, the religious sector may not have been prepared to lead citizens in preparing a new constitution but rather in renegotiations to amend the Constitution of Kenya Review

16 Commission (Amendment) Act, 1998 to facilitate the onset of bona fide constitutional review. A bigger responsibility than the religious leaders had anticipated was suddenly thrust on them. SECTION FOUR: NCEC S ATTEMPT TO BREAK THE CONSTITUTIONAL IMPASSE In November, NCEC launched an important document, which it hoped would form the basis for national discussion on how to overcome the country s political stalemate.15 The NCEC s National Rescue Action Plan was predicated, inter alia, on: a unified movement of all democratic forces (since) to work for the salvation of the nation rather than for limited political goals, we need a movement of people from all ethnic groups, all religious faiths, all occupations and all democratic political positions working together in solidarity. 16 The Action Plan17 consisted of six key steps: (i) Breaking the current stalemate over constitutional reform through the establishment of a selfgoverning multisectoral forum which would: a) Renegotiate the Constitution of Kenya Review Act, 1997 to fix the flaws in the Act and make the review process workable and democratic b) Negotiate the formation of a neutral transition institution to act as a caretaker government during the period of constitutional review c) Negotiate a transitional justice mechanism to grant immunity from prosecution persons who may have committed political crimes in the past d) Negotiate a package of interim democratic reforms to enable Kenyans participate freely in constitutional review e) Play the role of citizen s watchdog throughout the period of constitutional review (ii) Setting up a caretaker government which is fully representative and competent to govern. Such caretaker government would: a) Pass the interim constitutional reforms negotiated by the multi-sectoral forum b) Implement the transitional justice programme c) Implement the multi-sectoral forum s interim democratic reforms agenda

17 d) Implement the multi-sectoral forum s economic recovery programme e) Implement and safeguard the constitutional review process negotiated by the multisectoral forum. (iii) Implementing the interim democratic reforms programme (iv) Implementing an interim economic and social recovery programme (v) Creating a new constitution (vi) Ratifying the new constitution and inaugurating a new democratic order. Although the media sensationalised the NCEC s Action Plan by stating that the NCEC had called for a military government, 18 NCEC s proposals for breaking Keny s political stalemate in 1999 were perhaps the most well thought out. If implemented, the proposals had the potential of securing Kenya s democratic transition. SECTION FIVE: CONCLUSION: EMERGING ISSUES IN CONSTITUTIONAL DEVELOPMENT IN 1999 Several important themes or issues emerge from the 1999 survey of constitutional development in Kenya. The government felt it was in a strong position to reverse citizen gains of 1997 and 1998 secured through passage of the Inter Parties Parliamentary Group reforms19 and the Constitution of Kenya Review Commission (Amendment) Act, Increasingly government adopted a lukewarm attitude towards the implementation of the IPPG reforms. Further government demonstrated it had no interest in implementing the 1998 law to pave way for bona fide constitutional review. Government sought to replace the negotiated people driven process of constitutional review with a parliamentary driven one captured by KANU. Government in 1999 employed every trick to stall the momentum of constitutional reform. The objective, as had been the case since 1990, was to delay the onset of constitution making, thereby ensuring the continuation of a one party inspired constitution within a multiparty era ended on a sad note for constitutional development in Kenya because the government had by the end of the year confined constitutional debate at the level of process, not content. Thus 1999 closed the decade of the 90s by confirming that Kenya s ruling elite had never embraced broad based constitution making. Indeed all along the government had preferred and advocated for constitutional amendments, not overhaul.

18 The executive also continued to show it lacked fidelity to constitutionalism. A good example was the president s refusal to appoint a vice president when the language of the constitution on the appointment of the vice president is mandatory. KANU showed clearly that it was no respecter of negotiations because when it suited her, she was ready to reverse the Constitution of Kenya Review Commission (Amendment) Act, 1998 agreed in Bomas and Safari Park negotiations. This characteristic of KANU makes future negotiations problematic since KANU has demonstrated that it will renege on agreements whenever it suits her. However, it was also clear that if KANU is interested for personal gain in any constitutional changes, it will support them. This happened in relation to the constitutional establishment of the parliamentary service commission. Critically, in 1999, it was also demonstrated that Kenya s citizenry and generally the secular and religious civil society are significantly interested in participating in constitutional and democratic rebirth. The question of constitutional re-engineering is no longer a concern of only the political elite. Even grassroot populations are involved in activism geared at expanding their constitutional gains and getting a foothold in a people driven process of constitution making. At the close of the year, two competing processes of constitution making, a parliamentary driven process, and a people driven process led by the religious sector, were in the process of being established. Moi and KANU had not therefore won a victory over Kenyans on the way the constitution would be written. The stage is set for further contest between the people and the dictatorship in 2000 on who will say the last word on constitution -making. Fortunately history reveals that ultimately the people must triumph. Annual Report on constitutional development written for Kituo Cha Katiba: East African Centre for Constitutional Development, Kampala, Uganda. Associate Professor of Law, University of Nairobi, Kenya. 1. As amended by the Constitution of Kenya Review Commission (Amendment) Act, 1998, 38:42 2. For information in this section I relied on Kivutha Kibwana (with assistance from Jelvas Musau and Antony Munene) KENYA in Christof Heyns (Ed.) Human Rights Law in Africa 1997, The Hague, London, Boston, 1999: As amended by the Constitution of Kenya Review Commission (Amendment) Act, 1998.

19 4. See the Daily Nation January - December 1999 for all the factual accounts in this segment. 5. Ibid, February 4 at See Generally Kivutha Kibwana, Weaknesses in the Constitution of Kenya Review Act, 1997, Centre for Law and Research International, Mimeo, March Ibid. 8. See Republic of Kenya, National Assembly Eight Parliament - Fourth Session, Report of the parliamentary Select Committee Reviewing the Constitution of Kenya Review Act, 1997, Nairobi April 2000 at Ibid at See the Parliamentary Service Commission Bill, See also Daily Nation, November 12 at Daily Nation, February 10 at Ibid, February 24 at Ibid, September 29 at Ibid, September 14 at See NCEC, Katiba Mpya - Maisha Mapya: A vision for National Renewal, Nairobi., NCEC, Ibid at The rest of this account is closely based on Ibid Daily Nation, November 8 at See The Constitution of Kenya (Amendment) Act,1997 and the Statute Law (Repeals and Miscellaneous Amendments) Act, 1997 Kenya Gazette Supplement No. 70 (Acts No. 7) at

20 CONSTITUTION-MAKING IN TANZANIA: THE ROLE OF THE PEOPLE IN THE PROCESS Prof. Chris Maina Peter Faculty of Law, University of Dar es Salaam, P.O. Box 35093, Dar es Salaam, TANZANIA

21 August, 2000

22 CONSTITUTION-MAKING IN TANZANIA: THE ROLE OF THE PEOPLE IN THE PROCESS Outline I. Introduction: The Constitution and Constitution-Making II. Struggle for Independence: The Role Played by the People through Civil Organisations III. Independence and Parting of Company Between the Leaders and the Led IV. Major Constitutional Changes in the Country (a). From Multi-party to One-party Democracy (b). The Interim Constitution of 1965 (c). The Permanent Constitution of the United Republic of Tanzania of 1977 (d). The 1983 Constitutional Debate V. The Nyalali Commission on One-party or Multi-party VI. The White Paper: The Work of the Kisanga Committee VII. The 13 th Amendment to the Constitution of April, 2000 VIII. Conclusions and Observations IX. Selected Bibliography

23 CONSTITUTION- MAKING PROCESS IN TANZANIA: THE ROLE OF CIVIL ORGANISATIONS No one person has the right to say, I am the People. No Tanzanian has the right to say, I know what is good for Tanzania and others must do it. All Tanzanians have to make the decisions for Tanzania. Julius Kambarage Nyerere[1] I. Introduction: The Constitution and Constitution-Making The Constitution of a country is the most important legal document. It is the supreme law on which all other laws are based. At times it is referred to as a social contract between the rulers and the ruled. It is also the consensus amongst the people themselves. The Constitution is therefore more than just a document. It embodies the wishes and aspirations of the country. All the laws, by-laws, rules and regulations derive their legitimacy from the Constitution. Constitutions take various forms. There are written and unwritten Constitutions. Great Britain for instance, has no written Constitution. It is guided by traditions developed over the years. However, most countries and particularly those in the developing world have written Constitutions. Most of these Constitutions have been developed and shaped by their colonial past. Some were negotiated with the leaving colonial powers. They were or are compromises between the interests of the leaving rulers and the ruled who were taking over power. Yet others are outcomes of protracted independence struggle mostly armed. Some of these developing countries have gone beyond the so-called independent Constitution to a more home-grown Constitution. They have nevertheless retained the tradition of the former rulers. For instance, Constitutions of most of the former British colonies will retain the Westminster tradition with clear separation of powers, independence of the judiciary and generally existence of checks and balances. Others have tilted the balance in favour of a strong executive and a very weak judiciary and a rubber-stamping legislature. This paper examines the role played by the people in the constitution making process in Tanzania. The work begins by examining the struggle for independence and the movement towards the very first constitution of the country the Independence Constitution of Later on we look at the process of constitution making after independence. The focal point is the role of the people in this process. This area covers struggles of over thirty years. We conclude by a prognoses on what the future holds for the people of Tanzania in the constitution making in the country.

24 II. Struggle for Independence: The Role Played by the People through Civil Organisations Tanzania was formally under the British as a mandate under the League of Nations and later as a Trustee Territory under the United Nations.[2] Its independence Constitution was negotiated with the former rulers. In these negotiations the departing British had an upper hand. The nationalists and the people on the other hand, did not have a clear say in the process of framing the coming independence Constitution. One known concession made by the British was to allow the then Tanganyika to become independent with a Constitution that did not contain a Bill of Rights.[3] That was important as far as the nationalists were concerned as they no longer had a duty to protect the properties of the subjects of the departing rulers. During the struggle for independence and particularly in 1940s and 1950s, there was a very close relationship between the nationalist leaders and their people organised in civil organisations which the colonial regime allowed to exist. It was almost impossible to separate the politicians and these civic groups.[4] The peasants in their co-operative movements and the working people in their various trade unions provided the nationalist leaders with a forum through which they could address the public legally without having to go through the rigours of getting the required permits for meetings from the authorities. It is on record that even social organisations of the people such as football clubs like Young Africans Sports Club popularly known as Yanga and Taarab Clubs such as Egyptian Musical Club in Dar es Salaam were civil groups which assisted the nationalist movement in its struggle for the independence of the country. Therefore, the role of the people during the colonial period can not be underestimated. They were very effective in their various organisations. Worth noting, as indicated above, were the co-operative movement and the trade unions. This very amicable and supportive relationship was to change very much at after independence. III. Independence and Parting of Company Between the Leaders and the Led At independence the very close relationship between the politicians and the people in their various organisation came gradually to an end. This was due to the differences in perception of what the political independence meant for the people of Tanzania. As for the co-operative movement things were much easier. The top brass in the major co-operative societies were co-opted easily into the new government. In the forefront were the leaders of co-operative societies from Lake Victoria area. Paul Bomani from Victoria Federation in Mwanza, a strong cotton growing zone and George Kahama from Bukoba where there was a strong coffee growing area and there were others. This cooption did not mean freedom to co-operative movement. It is still placed under the tight control of

25 the government with the Minister responsible for Agriculture keeping an open eye on their operations.[5] The problem was the trade unions. There was a sharp division and divergence of views among the leadership. Some wanted to join the new government and get into politics proper. Others wanted to maintain their positions in the trade unions and continue with the struggle for the improvement of the welfare of the working people. Yet others joined the government for a short while and later left. There were serious repercussions to follow for the trade union movement in the country.[6] Therefore, people like Michael Kamaliza and Alfred Tandau joined the new Government and were given cabinet posts. Other union leaders like Christopher Kasanga Tumbo joined the government for a short time and then left.[7] For those who insisted on continuing the trade union tradition of fighting for the rights of workers and their welfare the government was loosing patience.[8] Tanganyika Federation of Labour (TFL) was outlawed and the leadership banished to remote areas of the Country. One of the top leaders of the movement, Victor Mkello was deported to the remote town of Sumbawanga.[9] TFL was replaced by a Statesponsored and supported National Union of Tanzania Workers (NUTA) which was affiliated to the ruling Party. For many years to follow, the Secretary-General of this trade union was always a cabinet minister responsible for labour. That development marked the end of the struggle between the people in their organisations one the one hand, and the government on the other, over the destiny of the country. Therefore, for most the post-independence period the civil society, through which the people were organised and thus could express themselves was submerged within the ruling party. This was in the form of what were referred to as mass organisations of the ruling party. These were of the youth, the parents, the workers, women and peasants (co-operatives).[10] As a result of this co-option by the State, these civil groups could not contribute meaningfully to the advancement of the struggle towards a progressive and democratic country. This applies to the contribution in the betterment of the Constitution as the main law of the country governing the relations between people and their government and among themselves. IV. Major Constitutional Changes in the Country The major constitutional changes that followed after independence point at one common thing. That is an attempt to by the ruling party and its government to show to the rest of the world that there was democracy in the country and that the people were fully involved in the constitutional process. That is quite understandable as even the most autocratic system does not own up to being autocratic. It would assert that it is democratic. And to be democratic or to be seen to be democratic you have to be seen consulting the people. That is what has been happening in Tanzania. An attempt to indicate that the party and its government were consulting the people while in fact they were not consulting anybody at all.

26 To prove our assertion, we look at various ways through which the constitutional process has taken from independence to the present. We examine the way from multi-party to mono-party; consolidation of oneparty system to its supremacy and back to multiparty again. We end with an examination of the most recent constitutional amendment the 13 th Amendment of 2000 which followed the controversial White Paper debate. (a) From Multi-party to One-party Democracy Tanzania, then known as Tanganyika, was a vibrant multi-party democracy at independence. The Independence Constitution of 1961 provided a legal and constitutional framework for that. Apart from the Tanganyika National National Union (TANU) which was dominant there were two other political parties. These were the United Tanganyika Party (UTP) formed in 1958 and backed by the landed section of white settlers in the country to counter the influence of TANU; and the African National Congress (ANC) which was also formed in 1958 by Zuberi Mtemvu after leaving TANU over disagreements over the position to be taken at elections. After independence other new parties emerged. These include the Peoples Democratic Party (PDP) of Christopher Kasanga Tumbo; the Peoples Convention Party (PCP) led by Samson Mshala; the Nationalist Enterprise Party (NEP) of Hussein Yahaya; All Muslim Nationalist Union of Tanganyika (AMNUT); and later came the African Independence Movement (AIM) which was a merger between PCP and NEP.[11] In this multiparty democracy there was a clear consensus that the Parliament was the supreme organ of the people. This was conceded by the former President of the United Republic of Tanzania, the late Mwalimu Julius K. Nyerere in a speech made on 25 th April, 1964 to the National Assembly asking it to ratify the Union between Tanganyika and Zanzibar. In this speech Mwalimu said: The Parliament is the supreme organ of the people of Tanganyika. No important constitutional issues or important matter concerning state agreement or concerning the laws of this country, can be finally decided by anyone or any group of persons other than this Assembly. All such matters must be brought before this house, and it is entirely at your discretion to approve them or reject them. Today, I am submitting to you for consideration a draft agreement for the Union of Tanganyika and Zanzibar. (emphasis added)[12] This was to change very soon. First, other political parties had to go in order to pave way for a one political party political system. According to Professor Cranford Pratt, a Canadian Political Scientist and the first Principal of the University College at Dar es Salaam: In Tanzania the several tiny parties which appeared in 1962 were harassed out of existence, their leadership deported or detained and their rights to register and hold meetings severely restricted.[13]